RICHMOND — Virginia lawmakers helped avoid the firestorm that has roiled North Carolina over LGBT rights by defeating a bill with similarities to the measure North Carolina’s governor signed last week.
On Feb. 9, a Virginia House of Delegates committee defeated a bill that would require transgender students at Virginia public schools to use the restroom and locker room of their “biological sex.”
Virginia lawmakers scuttled the bill, in part, to wait for an appeals court ruling — now expected any day — in the case of Gavin Grimm, a transgender student who is fighting to use a boys bathroom at his Gloucester County school.
“I do think our legislature showed admirable restraint and made the right decision,” said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, which is helping Grimm in court. The ACLU also considered the Virginia measure unnecessary and discriminatory.
When the 2014-15 school year started, Grimm asked for permission to use the boys bathroom. The school’s principal agreed and for seven weeks Grimm used it without any issue.
The Gloucester School Board approved a resolution in December 2014 that designates bathrooms to a student’s specific sex and allows for unisex bathrooms. Grimm was told the next day that he could no longer use the boys bathroom, according to court filings.
Grimm, who was assigned female at birth but identifies as male, said the Gloucester County School Board policy that prevents him from using the boys bathroom violates his rights under Title IX and under the U.S. Constitution.
In North Carolina last week, Gov. Pat McCrory, a Republican, signed legislation under which transgender people must use public bathrooms aligned with their anatomy and not with their gender identity.
The new North Carolina law goes further than the defeated Virginia measure. It also prevents cities and counties from approving their own rules against LGBT discrimination.
A number of large corporations have joined gay rights activists in criticizing the new law, and several big city mayors in other states have barred nonessential government travel to North Carolina. On Tuesday North Carolina Attorney General Roy Cooper, a Democrat, said he will not defend the measure in court.
Gov. Terry McAuliffe appeared likely to veto the Virginia measure if it got to his desk. The Democrat has long linked Virginia’s gay rights record to development of its business climate.
McAuliffe appears likely to veto a measure the legislature did approve this year that would protect religious groups from government-imposed penalties over their views on same-sex marriage.
McAuliffe said in his January State of the Commonwealth Address that he is “prepared to veto bills that roll back the progress that we have made on marriage equality.”
On Monday Georgia Gov. Nathan Deal, a Republican, announced he would veto a similar “religious liberty” measure, saying: “I do not think we have to discriminate against anyone to protect the faith-based community in Georgia.”
Deal faced pressure from large corporations and from the NFL, which had warned that such a law could hinder Georgia’s bids to host the Super Bowl.
North Carolina’s General Assembly passed its measure after the city of Charlotte approved an anti-discrimination measure to let transgender people use restrooms aligned with their gender identity.
The North Carolina governor tweeted that he had “signed bipartisan legislation to stop the breach of basic privacy and etiquette, ensure privacy in bathrooms and locker rooms.”
But the action has met with criticism from major corporations that do business in North Carolina and from officials in other states and cities.
On Monday New York Gov. Andrew Cuomo and New York City Mayor Bill de Blasio banned nonessential government travel to North Carolina, as have San Francisco Mayor Ed Lee and Seattle Mayor Ed Murray.
On Monday a transgender plaintiff filed a federal suit against the new North Carolina law.
In Virginia in January, Grimm’s fight to use a boys bathroom at his Gloucester County school went before the 4th U.S. Circuit Court of Appeals. Lawyers for the ACLU asked a three-judge panel to overturn a district court’s denial of a preliminary injunction.
The injunction would have allowed Grimm to use the boys restroom at Gloucester High School as his lawsuit against the county’s school board works its way through the court system.
The ACLU also has asked the court to reinstate a claim that the school board’s bathroom policy violates federal sex discrimination law.
Del. Mark Cole, R-Spotsylvania, sponsored HB 781, the measure a Virginia House panel defeated in February.
Cole said at a hearing of the House General Laws Committee that the measure would “help protect schools from being sued over the issue of allowing someone of the opposite sex to use the facilities that are designated one way or the other.”
He added: “This is not about discrimination, this is about privacy.”
The bill would have required local school boards to adopt policies requiring that all restrooms and locker rooms accessible by multiple students be “designated for and only used by students based on their biological sex.” The legislation would have applied to all public buildings owned by the state. Violations would carry a $50 civil penalty.
At the time, Gastañaga encouraged the committee to hold off on the bill to let the appeals court rule in Grimm’s case.
Del. Thomas “Tag” Greason, R-Loudoun, was among lawmakers who appeared to agree it was wise to wait.
“This is a little bit complicated, and I’m not comfortable sending a signal to the courts that we’re making a decision in anticipation of what they may or may not decide,” Greason said.